ADVOCATES:David A. Lane - for the respondentSean R. Gallagher - for the petitionerSri Srinivasan - Principal Deputy Solicitor General, Department of Justice, for the United States, as amicus curiae, supporting the petitioner

Facts of the case

On June 16, 2006, Steven Howards saw Vice President Dick Cheney while strolling through Beaver Creek Mall. Howards decided to approach the Vice President to protest the President's polices regarding the Iraq War.

On that day, Gus Reichle and Dan Doyle were part of the Secret Service detail protecting the Vice President. Doyle heard Howards state into his cell phone "I'm going to ask him how many kids he's killed today." Howards approached the Vice President and told the Vice President that he disapproved of his policies in Iraq. When the Vice President turned to leave, Howards made unsolicited physical contact with the Vice President by touching the Vice President's right shoulder with his open hand.

Agent Reichle approached Howards, identified himself as a Secret Service agent, and asked to speak with Howards. After briefly questioning Howards, Reichle arrested him. Howards was initially charged with harassment under state law, but those charges were dismissed. No federal charges were filed.

Howards sued agents Reichle and Doyle under 42 U.S.C. 1983, alleging that the agents had violated his Fourth Amendment right with an unlawful search and seizure and his First Amendment rights by retaliating against him for engaging in constitutionally protected speech. The agents moved for summary judgment on immunity grounds. The district court denied their motion, ruling that fact issues regarding the agents' immunity defense precluded summary judgment. The agents took an interlocutory appeal to the U.S. Court of Appeals for the Tenth Circuit. They argued that they were entitled to qualified immunity because they had probable cause to arrest Howards and also asserted that they were entitled to heightened immunity by virtue of their status as Secret Service agents protecting the Vice President. The appellate court affirmed in part and reversed in part. The panel unanimously rejected Howards' Fourth Amendment claim on the grounds that the agents objectively had probable cause to arrest Howards. However, the panel held that probable cause was not a bar to Howards' First Amendment retaliation claim and that Howards could proceed with his First Amendment retaliation claim notwithstanding the fact that the agents had probable cause for his arrest.

Question

1. Does probable cause to make an arrest bar a First Amendment retaliatory arrest claim?

2. Do Secret Service agents have qualified immunity in the matter of an arrest for which there was probable cause consistent with the Fourth Amendment?

John G. Roberts, Jr.:

Clarence Thomas:

This case comes to us on a writ of certiorari to the United States Court of Appeals for the Tenth Circuit.

It presents the question whether two Secret Service agents are immune from suit for allegedly arresting a suspect in retaliation for his speech when the agents had probable cause to arrest the suspect for committing a crime.

Secret Service agents, Gus Reichle and Dan Doyle were part of Vice President Cheney's protective detail when he visited a Colorado shopping mall in 2006.

While the Vice President greeted members of the public, Agent Doyle overheard Steven Howards say into his cellphone that he was going to ask the Vice President, “How many kids he had killed that day?”

Howards then approached the Vice President and told him that his policies in Iraq were disgusting.

As the Vice President turned to leave, Howards touched his shoulder.

Howards later claimed that the touch was merely a friendly pat.

Several -- Secret Service agents described it as a hostile push.

After this encounter, Agent Reichle attempted to question Howards about his behavior.

Howards told Reichle to keep the Vice President out of public places if Reichle did not want people to share their opinions.

Howards also falsely denied having touched the Vice President.

Reichle arrested Howards who was charged with harassment.

That charged was later dropped.

Howards subsequently brought this suit against Reichle and Doyle.

Howards claimed that his arrest violated the Fourth Amendment because the agents lacked probable cause.

Howards also claimed that his arrest violated the First Amendment because it was retaliation for his criticism of the Vice President.

The agents moved for summary judgment on the ground that they were entitled to qualified immunity, but the District Court denied the motion.

On appeal, the Tenth Circuit held that the agents enjoyed immunity from Howards' Fourth Amendment claim because they had probable cause to arrest Howards for lying to a federal officer.

As to Howards' First Amendment claim, however, the Court held that agents were not immune because Tenth Circuit precedent clearly held that a retaliatory arrest may violate the First Amendment, even if the arrest is supported by probable cause.

In an opinion filed with the clerk today, we reversed the Tenth Circuit's judgment denying the agents' immunity from Howards' First Amendment claim.

Qualified immunity shields government officials from civil damage -- damages liability unless the officials violated a constitutional right that has been clearly established.

This Court has -- this Court has never held that there is a First Amendment right to be free from a retaliatory arrest that is independently supported by probable cause.

The Tenth Circuit concluded that its own cases had clearly established such a right, but when Howards was arrested the continued viability of the Tenth Circuit precedent was not clear in light of this Court's decision in Hartman versus Moore.

Hartman held that the existence of probable cause defeats a First Amendment claim of retaliatory prosecution and reasonable officers could have concluded that Howards' -- Hartman's rule applied equally to retaliatory arrest.

First, many of the conflicting Court of Appeals or Courts of Appeals' decisions that prompted our review in Hartman involved both retaliatory arrest and prosecution claims and made no distinction between the two when considering the relevance of probable cause.

Second, several features of retaliatory prosecution claims that are central to Harman's rationale are present in retaliatory arrest cases as well.

Finally, various Courts of Appeals have concluded that Hartman's no probable cause requirement extends to retaliatory arrest claims.

In light of the foregoing, we cannot conclude that Howards has a -- had a clearly established First Amendment right to be free of a retaliatory arrest that was otherwise supported by probable cause.